implementing gender equality and mainstreaming in an enlarged european union – some thoughts on...

14
This article was downloaded by: [Mount Allison University 0Libraries] On: 05 October 2014, At: 02:26 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of Social Welfare and Family Law Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rjsf20 Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe Samantha Velluti Published online: 12 Apr 2011. To cite this article: Samantha Velluti (2005) Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe, Journal of Social Welfare and Family Law, 27:2, 213-225, DOI: 10.1080/09649060500168200 To link to this article: http://dx.doi.org/10.1080/09649060500168200 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms- and-conditions

Upload: samantha

Post on 19-Feb-2017

214 views

Category:

Documents


2 download

TRANSCRIPT

Page 1: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

This article was downloaded by: [Mount Allison University 0Libraries]On: 05 October 2014, At: 02:26Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of Social Welfare and FamilyLawPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/rjsf20

Implementing Gender Equality andMainstreaming in an Enlarged EuropeanUnion – Some Thoughts on Prospectsand Challenges for Central EasternEuropeSamantha VellutiPublished online: 12 Apr 2011.

To cite this article: Samantha Velluti (2005) Implementing Gender Equality and Mainstreamingin an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central EasternEurope, Journal of Social Welfare and Family Law, 27:2, 213-225, DOI: 10.1080/09649060500168200

To link to this article: http://dx.doi.org/10.1080/09649060500168200

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to orarising out of the use of the Content.

This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

Page 2: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

European Section

Edited by Joanne Hunt & Chloe J. Wallace

Implementing Gender Equality andMainstreaming in an EnlargedEuropean Union – Some Thoughts onProspects and Challenges for CentralEastern Europe

Introduction

This article considers the adoption and implementation of gender equality law

following the 2004 enlargement of the European Union that incorporated a number

of Eastern Europe countries. It addresses the question of how effective ‘soft’

coordination strategies – such as, for instance, the Open Method of Coordination

(OMC) and gender mainstreaming – can be in helping Central Eastern European

Countries (CEECs) to fully enforce gender equality legislation at all levels of policy-

making. The analysis aims at being fairly comprehensive, in terms of considering all

of the eight CEECs which acceded to the EU on 1 May 1 2004 (The Czech Republic,

Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Bulgaria and

Romania are scheduled to join in 2007). It considers the condition of ‘post-

communism’ which characterises all CEECs and which creates a degree of

commonality between them (Sadurski, 2002: 2), through their sharing of similar

problems stemming from the post-1989 economic transition to a neo-liberal

economic system.

The article is organised into two main sections. The first section examines the

transposition of EU gender equality acquis into national legislation, as required by the

Accession negotiations (namely, Chapter 13 on social policy and employment), and

evaluates remaining problems in fully incorporating the EU gender equality acquis in

CEECs. The second section focuses on the use of soft law instruments as a way of

ensuring the full implementation of EU gender-equality goals. In particular, it

examines to what extent the OMC could be employed as an appropriate policy

learning tool to identify areas where an initiative of the Community may be deemed

necessary and, secondly, whether the OMC combined with a gender mainstreaming

Journal of Social Welfare and Family LawVol. 27, No. 2, June 2005, pp. 213–225

ISSN 0964-9069 print/1469-9621 online # 2005 Taylor & Francis Group LtdDOI: 10.1080/09649060500168200

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 3: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

strategy, which attempts to integrate a gender perspective into all levels of decision

and policy-making processes, may strengthen the adoption and implementation of

genuine gender equality measures.

The main argument of the paper is that a way of ensuring the effective

transposition of the EU gender acquis into CEECs’ legal systems could be achieved by

transcending the ‘hard/soft’ law debate. Thus, rather than considering the OMC and

the gender mainstreaming strategy on the one hand, and gender equality directives

on the other hand as opposing or alternative modes of governance, the aim should

be, instead, to identify ways of establishing a stronger dialogical relationship between

them. This would conjugate the strengths of both forms of policy-making. Such a

policy mix could represent a leverage for the introduction of reforms in the area of

gender equality in CEECs whilst, at the same time, respecting their national

characteristics and regional peculiarities.

The Implementation and Enforcement of the EU Gender Equality acquis in

CEECs: Selected Aspects

Gender Equality in the European Union

The promotion and strengthening of gender equality has become an established

priority policy of the Community agenda and has been held on numerous occasions

by the European Court of Justice to be a fundamental right under Community law

(e.g. Case 149/77, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena

(III) [1978] ECR 1378; Case C-13/94, P v. S and Cornwall County Council [1996] ECR

I-02143). In addition, in the Community legal order the principle of equality has the

status of a general principle of EC law (Case 149/77, Defrenne v. Societe Anonyme

Belge de Navigation Aerienne Sabena (III) [1978] ECR 1378). As such, it acts as a

binding standard on the European Institutions and national authorities.

Since the inception of the Community, EC gender equality law has made a positive

and important contribution to combating discrimination and has developed into

a principle of constitutional dimensions (More, 1999: 541). The reason for this is

that it has advanced in line with both the economic and social objectives of

the Community, as exemplified by the case law of the European Court of Justice

on Article 141 EC and the legislation constructed around it1. This also explains

why gender equality law is one of the most highly developed areas of EC social

policy.

The importance of gender equality was given new impetus by the insertion of

Article 13 EC into the EC Treaty, which gave the Community further competence to

adopt anti-discrimination legislation. In particular, the Council was given the power

to adopt legislation aimed at fighting discrimination on grounds of ‘sex, racial or

ethnic origin, religion or belief, age, disability and sexual orientation’. Article 13 EC is

the legal base of various Community measures such as, for example, Directive 2000/

78/EC, establishing a general framework for equal treatment in employment and

occupation (the Framework Employment Directive), OJ 2000, L303/16; Directive

214 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 4: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

2000/43/EC, implementing the principle of equal treatment between persons

irrespective of racial or ethnic origin (the Race Equality Directive), OJ 2000, L180/

22; Decision 2000/75, establishing a Community Action Programme to combat

discrimination (2001–2006), OJ 2000, L303/23; Directive 2004/113/EC, implement-

ing the principle of equal treatment between men and women in the access to and

supply of goods and services, OJ L373/37. In addition, Article 13 EC brought the

concept of gender equality beyond the area of employment. This change was

particularly significant given that, until then, this principle remained limited in scope

and concerned employment-related sex discrimination.

At the same time, parallel changes in the typology of tools and techniques have

been introduced into EU policy-making with the aim of complementing these new

legislative measures. These changes signify the integrationist approach at the

European level for ensuring gender equality in all areas of EU law and policy. In

particular, the main soft law tool to reduce discrimination based on gender has been

gender mainstreaming. This has been defined as, ‘the systematic consideration of the

differences between the conditions, situations and needs of women and men in all

Community policies, at the point of planning, implementing and evaluation’ (COM

(96) 650 2).

Furthermore, developments that have taken place in recent years are evidence of

the European Union’s ongoing commitment to gender equality. These developments

include the establishment of a Community framework strategy on gender equality

(COM (2000) 335 final), which combines traditional forms of legislation with soft

law instruments and so-called ‘proactive’ with ‘reactive’ measures. They also include

the creation of an ad hoc and independent body; namely, a European Institute for

Gender Equality (COM (2005) 81 final). This is entrusted, inter alia, with the tasks of

gathering and disseminating information and best practices, promoting dialogue and

partnerships and raising awareness. Related developments include the adoption of a

directive on gender equality outside the area of employment (Council Directive 2004/

113/EC) and the proposal of recasting of gender equality directives (COM (2004) 279

final).

In the next section, the analysis focuses on the extent to which the EU gender

equality acquis has influenced the promotion of equal opportunity policies in CEECs.

In particular, the study examines the adoption and implementation of gender-

equality legislation and policies, before and after EU accession.

Gender Equality Policies in CEECs

So what claims can be made for gender equality in CEECs? In order to answer this

question – and to have a full understanding of gender equality policies in CEECs – it

is useful to start by looking at the constitutions of these countries.

The EU equality and anti-discrimination constitutional provisions have been

frequently used in the process of constitutional review in CEECs (Sadurski, 2003: 3).

While most of the constitutions limit themselves to the prohibition of discrimination

or a general proclamation of the principle of equality, other clauses also provide for

Journal of Social Welfare and Family Law 215

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 5: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

special protection for specified social groups that are generally considered to be in a

disadvantaged position. These include, for example, pregnant women (Article 66

Hungarian Constitution) and mothers (Article 47 Bulgarian Constitution). These

developments are partly explained by the growth of greater inequality, associated with

the emergence of a market economy, combined with ‘ingrained egalitarian societal

attitudes’ (Sadurski, 2003: 1).

It is in this context that, towards the end of the 1990s, decisions related to gender

equality were given greater importance in the case law of the constitutional courts of

CEECs (Sadurski: 2003: 7). However, the number of cases on gender inequality

lodged before ordinary courts still remains relatively small (Sloat, 2004: 67). This is

due to a variety of reasons. Firstly, after the collapse of communism there was a

reaction to the economic and social values that underpinned that system. This often

manifested itself in a resentment of any form of intervention based on labour

legislation. Alongside this, in most CEECs there was (and remains) a strong

conviction that a liberal–democratic political system combined with a market

economy and a minimum laissez-faire state would automatically ensure democracy,

the rule of law and, consequently, individual equality. In addition, the post-1989

economic transition, combined with the macroeconomic adjustments necessary to

join the European Union, have impacted negatively on the economic situation of

women. In particular, the move to a new economic system has increased the levels of

unemployment, especially that of women, and reduced state support for childcare

and family policies. More precisely, even though most of this support has remained,

the increase in unemployment and inflation caused by structural reforms has

undermined the capacity of the state to fund childcare and family policies (Pascall &

Kwak, 2004: 10–11).

Furthermore, before 1989 the ideal of equality between women and men did not

correspond to a truly embedded notion of gender equality in society. It pertained,

rather, to a rhetorical discourse of equality in accordance with the principles of

Marxism–Leninism. The socialist state expected women to participate fully in the

post-war process of ‘building socialism’. It not only ensured women’s economic

independence but also enacted ‘protective’ maternity and childcare laws, and

provided adequate infrastructure such as, for example, nurseries, school meals,

comprehensive healthcare provisions, and cheap and efficient transport. The state

also actively encouraged a negative perception of women who chose motherhood

alone and worked only in the home. Employed mothers were the preferred ideal

(Sloat, 2004: 6).

However, despite the rhetoric of equal rights in CEECs, gender ideology towards

the family and motherhood led to the maintenance of a traditional notion of the

gender contract. Consequently, various forms of discrimination against women, both

in the legal system and in society, have persisted. For instance, in the labour market

only a very small percentage of women have higher managerial positions (this is

despite their higher levels of education) and the wage gaps are often extremely high

(see the Joint Assessment of Employment Priorities in Poland 2001: 29). In some

countries there has also been a tendency among employers of small and medium

216 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 6: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

firms to follow discriminatory practices; such as, for example, demanding pregnancy

tests prior to offering an employment contract to a woman (Sadurski, 2003: 6).

Moreover, before accession there was no effective application of the equal pay for

work of equal value principle, even though it was contained in most constitutions

and labour codes. This was partially explained by the fact that often in the legislation

there was no definition of either remuneration or of the concept of ‘work of equal

value’ (Sloat, 2004: 8).

In addition, in most circumstances the discrimination is the result of societal

norms and prejudices which manifest themselves in the assignment of specific gender

roles in the labour market. These stereotype male and female professions such as, for

example, managerial work for men and secretarial work for women. Finally, there are

also high levels of under-representation of women in the decision-making process of

these countries. This includes representation in parliamentary and local bodies, in

government and in the higher positions of the judiciary. A number of proposals for

increasing women’s participation have been put forward but most of them have

failed. Once again, this is a consequence of the transition to market economies; under

the communist regime, there were fixed quotas ensuring a high representation of

women.

An overly narrow definition of the ‘political’ has blocked initiatives for a greater

level of political participation on the part of women in post-socialist systems (Jalusic

& Antic, 2004: 3), and demands for the introduction of mechanisms that would

ensure equal participation have often been perceived as illegitimate. Structural

discrimination persists due to the assumption that general anti-discriminatory laws,

and the mechanisms of legal and constitutional complaint, suffice for the realisation

of equality. As a result, even though some of these countries have provisions

containing special clauses for specific social groups, these provisions do not provide

for the setting up of supportive and positive action mechanisms for ensuring equality

(Sadurski, 2003: 15). The socialist legacy has instilled an aversion to quotas or other

positive measures to achieve gender equality in the political system (Choluj &

Neusuess, 2004: 5).

However, despite this scenario, several regional networks of women’s non-

governmental organisations (NGOs) emerged at the end of the 1980s. These NGOs

play a critical role in fostering consensus building and partnerships, in engaging in

advocacy at regional level and in promoting linkages at the global level. Examples

include the KARAT-Coalition, the Network of East/West Women-Polska and Astra.

Moreover, in the last few years some elements of the mechanisms needed for

the implementation of equal opportunity policies have been established. These

mechanisms have been created as a result of the positive impact of the 1995 UN

Conference on Women in Beijing. This conference dealt with the elimination of all

forms of discrimination against women, and the preparation of national action plans.

Alongside the pressure exerted by women’s NGOs and the initiatives of certain

political parties, there is finally, but not least, within the process of EU accession,

the adoption of the Community acquis; in particular, EU Directives on equal

opportunities and equality (Jalusic & Antic, 2004: 3).

Journal of Social Welfare and Family Law 217

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 7: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

Implementation and Enforcement of the EU Equality Acquis in CEECs

In this section, the analysis is subdivided into two parts. First, we will start by looking

at the national mechanisms for implementing equal opportunity policies in CEECs.

Second, we will focus on the current situation of the implementation of EU gender

legislation and identify some of the problems concerning its enforcement. During the

communist regimes, there were ad hoc women’s councils. These were considered to be

the official representatives of women. They operated both locally and at workplaces,

and their members were often appointed by the party’s ruling body. Post-1989, most

CEECs did not have separate institutions and bodies to deal specifically with gender

equality; thus governmental bodies overseeing women’s issues were attached to, and

divided among, several ministries (Jalusic & Antic, 2004: 4).

Government mechanisms mainly consist of special consultative bodies, such as the

Office for Women’s Politics in Slovenia, or coordination committees like those in

Slovakia. There are also special ministerial sections that are generally part of various

ministries – the latter include the Ministry of Labour, the Ministry of Social Affairs

and the Ministry of the Family. In most circumstances, these bodies’ circumstances

are not created by a separate act of parliament. For example, in Poland the Secretariat

of the Government Plenipotentiary for Equal Status for Women was established by

ordinance of the Council of Ministers in 2001. In practice, this means that the

existence and funding of these bodies are subject to the political will of the ruling

government. Linked to this, they lack any powers to draw up laws or shape

government policy regarding gender equality. However, in the wake of the EC anti-

discrimination directives this situation has started to change. For example, in

Hungary an authority on fostering equal opportunity has been established by

Parliamentary Act No. 125 of 2003. Nevertheless, the mechanisms provided for

implementing gender equality are weak because there is no consistent government

policy of equal opportunity and the mandates of these bodies are often unclear.

With regard to the Community gender equality acquis, all CEECs have

implemented EU equality directives even though, in some areas, legislation is still

in the process of being passed (Sloat, 2004). Under Accession negotiation Chapter 13

(social policy and employment), social conditionality required the implementation of

both the hard acquis – that is, EU health and safety rules, a range of EU social

legislation, such as, for instance, on working time, parental leave, equal opportunities,

mechanisms for social dialogue – and the soft acquis. The latter entails a shift from

social law and legislative initiatives towards policies aimed at fostering employment

creation, social protection and social inclusion. Such measures are implemented on

the basis of non-binding legal instruments.2

In order to comply with the EU gender equality acquis, most of these countries

have either introduced additional provisions in their constitutions and/or labour

codes, or introduced supplementary legislation to clarify, strengthen or amend

existing labour codes’ clauses. In other circumstances, they have introduced new

legislation. However, even though gender equality laws are more or less in place in all

CEECs, having equal opportunities laws is not enough to provide an adequate system

218 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 8: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

for the enforcement of gender equality legislation. There are a variety of reasons for

this (Sloat, 2004: 55). First, there is little familiarity with certain concepts such as, for

example, the burden of proof in sex discrimination cases, part-time work regulations

and self-employment. Second, the complexity of the new legislation and the lack of

training of the bodies entrusted with their enforcement. Third, there is the problem

of the lack of awareness of gender legislation, due to the little amount of information

provided by governments. Fourth, there is little participation (and sometimes

interest) of the social partners in the implementation of equal opportunities policies,

and not enough coordination between the former and other actors like NGOs and

governmental bodies. There is some evidence that the OMC is gradually helping to

give more voice to civil dialogue, and that this has started to exercise some pressure

on national governments to take action against poverty and social exclusion (Szakmai

Szovetseg, 2003), but there is not enough data to suggest that this is taking place in all

CEECs and in the same way. Fifth, and more broadly, there is the aversion caused by

the socialist legacy.

The Role of Soft Coordination Strategies in the Implementation of Gender

Equality in CEECs

In the previous sections we have seen that the implementation and enforcement of

gender equality legislation and policies in CEECs are hindered by a series of factors,

some of which also concern other EU Member States. Certainly the fact that all ten

EU gender equality directives are more or less in place in CEECs is a first and

important step towards the achievement of equality. However, the next step is to

identify appropriate measures which can ensure the effective implementation of the

new gender equality legislation. This section, therefore, looks at the use of soft law

instruments as a means of ensuring the full implementation of EU gender equality. In

particular, it examines to what extent the OMC is an appropriate policy learning tool

to identify areas where an initiative of the Community may be deemed necessary and,

secondly, whether the OMC combined with a gender mainstreaming strategy, which

attempts to integrate a gender perspective into all levels of decision and policy-

making processes, may strengthen the adoption and implementation of genuine

gender equality measures.

In order to evaluate the effectiveness of the OMC together with a gender

mainstreaming policy, the analysis is going to focus on the European Employment

Strategy (EES). Firstly, this is the most developed coordination process under the

OMC and, secondly, it was in the context of the EES that the commitment to gender

mainstreaming on the part of the European Union and the Member States has been

made more visible. Hence, the EES, at least in principle, has provided a new platform

for the development of a European-wide approach to reducing gender inequalities.

The EES is laid down in the Employment Title of the EC Treaty, Title VIII, and it is

an important part of the Community social acquis. The EES is an iterative process

based on open participation in the implementation of policies, consensus building,

exchange of best practices and information, use of benchmarking and, more broadly,

Journal of Social Welfare and Family Law 219

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 9: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

cooperation and coordination within a multi-tiered framework of governance

(Velluti, 2003). In particular, Member States are under an obligation to draw up

reports called National Action Plans for Employment (NAPs), pursuant to so-called

Employment Policy Guidelines (EPGs). These NAPs are subject to assessment by the

European Commission, which issues recommendations based on these assessments.

However, the constraints on Member States are not legal in nature since this new

regulatory mode lacks of a system of sanctions and enforcement procedures; it is,

rather, a moral and political constraint.

One of the most important objectives of the EES – which is also one of its most

important achievements – is the promotion of policy learning and innovation

through consensus building and the creation of partnerships between different

policy-makers. In particular, the submission of NAPs by Member States in

cooperation with the social partners, in accordance with common objectives and

indicators established in the annual EPGs, and the evaluation made by the European

Institutions through the Joint Employment Report (JER), and the Assessment Report

on Implementation (ARI), is illustrative of the way that the ‘re-regulation’ or ‘re-

nationalisation process’ operates in practice. The EES, therefore, promotes the

creation of new employment and labour market paradigms through the exchange of

best practices and benchmarking, and by linking various areas of social policy.

However, the operation of the EES presents various weaknesses such as, for

example, the fact that the information on specific policies has often been

insufficiently detailed, and that assessing the data available and drawing cross-

country comparisons has been hard to make due to different national labour market

patterns. Hence, while the NAP process produces a large amount of information, the

level of policy learning resulting from it is difficult to assess.

Nevertheless, the reference made to the EES in some labour law directives is

evidence of the contribution that the EES can make to policy learning and innovation

within the European Union (Velluti, 2003: 390–392). For instance, Council Directive

1999/70/EC on Fixed-term Work, Directive 2000/43/EC on race and ethnic

discrimination and Directive 2000/78/EC, which establishes a general framework

for equal treatment in employment and occupation, all emphasise the importance of

the EES as a valuable policy tool to promote anti-discrimination measures and, in the

case of the Fixed-Term Directive, to ensure both the flexibility of employment

contracts and security of the workers.

Similarly, during the pre-accession phase CEECs have been defining labour market

and employment policies in line with European standards, and progressively

adjusting institutions and policies to the EES in order to allow the full

implementation of the Employment Title as from accession. To this end, in 1999

the European Commission initiated a cooperation process on employment with these

countries. This also aimed at ensuring that both the present EU financial support for

accession and the preparation for European Social Fund (ESF) implementation

would focus on supporting the identified employment policy priorities. Several of the

CEECs drew up employment action plans containing programmes structured on the

basis of the EES, the so-called ‘Joint Assessment of Employment Priorities’ (JAP). At

220 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 10: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

the beginning of 2002, seven CEECs were evaluated. In particular, shortly after the

signature of the JAPs the main commitments were discussed in technical seminars

between the European Commission and representatives of different ministries,

regional authorities, the Public Employment Services (PES) and the social partners.

Subsequently, the JAPs were reviewed in a second and third round. This reviewing

process helped to identify strategic challenges, some of which are also shared with the

current Members States. For example, in the 2001 JAP of Poland, there is evidence

that some first and important steps have been made with regard to equal

opportunities with the identification of various policy objectives. These include

raising awareness through information initiatives in the media and schools, and

promoting partnerships with the social partners in order to start dismantling the

traditional gender contract which is deeply embedded in Polish society.

Having looked at the main contribution of the EES as a process which promotes

policy learning and partnerships, we can now move on to assess the development and

implementation of a gender mainstreaming strategy within the EES. As we have seen,

gender mainstreaming requires gender equality issues to be built into all policy

programmes and it ensures that gender effects are taken into consideration in the

initial design and further implementation of policy measures. In addition, it also has

an inherent transformative approach (Rees, 1999; Beveridge & Nott, 2002) since it

relies on policy innovation processes.

Since its launch the EES has helped to increase the commitment of the European

Union towards gender equality or, better said, to make its commitment more visible

(Rubery, 2002: 500). This is by way of including equal opportunities between women

and men as the then-fourth pillar of the EPGs, alongside employability,

entrepreneurship and adaptability, and by including gender mainstreaming as one

of the guidelines (G 19). This required that Member States took into consideration

the gender impact of all policies under each pillar.

Moreover, at the 2000 Lisbon Summit a specific target of 60% by 2010 for the

female EU employment rate was established. In addition to G 21, which provided for

the design, implementation and promotion of family-friendly policies, a new

benchmark requiring Member States to expand childcare provision was introduced.

The commitment to gender equality has gathered momentum in subsequent years

and an interim target of 57% for the female employment rate was agreed under the

Swedish presidency. Further gender indicators were also agreed.

However, the problem with gender equality is that, ‘there are many aspirations

lying behind an apparent common commitment to pursue equal opportunities’

(Rubery, 2002: 503). In addition, even though almost all Member States had put in

place some formal mechanism for gender mainstreaming, the effectiveness of these

measures and, more precisely, the extent to which they were accompanied by the

setting up of ad hoc departments, institutions and bodies at the ministerial and

inter-ministerial level varies. So to does the adoption of concrete measures, such as

the development of specific actions within the national decision and policy-making

process, with only a few Member States having taken such measures. In addition, the

approach taken towards equal opportunities has been shaped by the objectives of the

Journal of Social Welfare and Family Law 221

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 11: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

EES. More precisely, the promotion of equal opportunities has been greater where it

was compatible or, better said, where it coincided with the aims of the EES. Examples

include improving women’s access to the labour market and favouring schemes for

enhancing female entrepreneurs.

There is also a problem with the benchmarking process of the EES, in that it does

not provide the basis for the adoption of further measures, but is limited to the

identification of benchmark targets (Rubery, 2002: 521). More broadly, this is a

weakness of the strategy in that the focus is more on management by objectives and

on an economic rationale (as opposed to a human rights, or more simply a social

solidarity justification). Thus it ends up becoming too concerned with achieving

quantified targets established a priori, rather than with using the information

provided in order to adopt a genuine mainstreaming strategy; i.e. one that focuses on

quality and aims at changing the economic and social structures of those Member

States which maintain a traditional concept of women in the labour market.

Following the Barcelona European Council, which called for a strengthening of

the EES, the European Commission issued a series of Communications. In the

Communication Taking Stock of Five Years of the European Employment Strategy

(COM (2002) 416 final), it reviewed the experience of five years of the EES and

broadly outlined a redesign of the EES for the future. In addition, it streamlined the

employment and economic policy coordination processes with a shift towards a more

medium and longer-term approach. This had the aim (among others) of improving

the coherence and complimentarity of the various processes and instruments (COM

(2002) 487 final). These changes have had both positive and negative consequences

for the promotion of equal opportunities (Rubery et al., 2004). A positive

development was the definition of three overarching objectives; that is, full

employment, quality and productivity at work, and social cohesion and inclusion.

A negative consequence was that the redesign of the EES has meant that the Pillar-

structure on which it was based ceased to exist and thus the gender equality pillar has

been reduced to one guideline, G 6. Linked to this, it has reduced the visibility of

gender mainstreaming. Second, the streamlining process provides, in principle, the

opportunity for extending gender mainstreaming to the Broad Economic Policy

Guidelines (BEPG) process. However, it also carries with it a risk of reducing the

social dimension and enhancing the economic rationale underpinning the EES.

Moreover, a study conducted by Rubery et al. (2004: 609–617) on the 2003 NAPs

shows that almost all the Member States failed to adopt a stronger and more coherent

gender equality approach. The findings of that study show developments to have

been, on the whole, rather disappointing in comparison to the achievements obtained

during the first years of implementation of the EES. In those years, there was clearly

more commitment towards improving or strengthening equal opportunities policies.

An analysis of JAPs reveals a similar scenario with regard to CEECs. It also shows that

in most cases the drafting of the JAPs has been a purely administrative exercise with a

lack of political commitment from most governments of these countries (Velluti,

2004). In particular, gender equality policies were only mentioned in programmatic

terms rather than in terms of what had already been done.

222 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 12: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

All of these considerations demonstrate that the practical application of gender

mainstreaming is complex. Furthermore, it shows that a commitment at the

European and national level (mostly ministerial level) through ‘soft’ coordination

processes is not enough to ensure an effective and proactive approach to gender

equality, even though it certainly represents a first important step in promoting

gender equality. Nonetheless, the fact that gender mainstreaming has been

introduced in the Constitutional Treaty among the list of objectives to which the

European Union is committed, and as a guiding principle in all the activities of the

European Union (Articles II-23, III-2 and III-3 CT), is to be welcomed.

However, once again, this is only a partial solution. This constitutional duty

should entail the definition of a true equality strategy. Such a strategy should

comprise two key elements: impact assessment of all legislation and policies, and

participation of affected groups in decision-making processes (McCrudden, 1999). In

short, a higher degree of representation of, and participation by, women. More

precisely, this means translating the principle of gender mainstreaming into an

everyday practice. Thus, the focus should not be on its definition, but rather on

establishing an effective process or strategy with a supportive political environment

and a strong organisational framework. This should focus on the twin objectives of

equality and diversity by way of combining strategies of inclusion, reversal and

displacement (Shaw, 2004: 14). With regard to impact assessment, it would be

particularly effective to introduce a gender dimension into the budget of national

governments. In other words, gender budgeting could be a valuable way of

monitoring and assessing the different impacts of policies on women and men. With

regard to increasing women’s participation and representation, the OMC and, in

particular, the EES as a participatory form of democracy could well serve to promote

a ‘model of mainstreaming in action’ (Shaw, 2004: 18).

Hence, a solution could be to strengthen the OMC and the gender mainstreaming

processes. This could be done by, for example, increasing the use of more explicit,

quantified benchmarks and targets and a greater degree of transparency. Also,

attention could be given to providing the basis for creating an institutional and

operational framework for the implementation of gender equality legislation at all

levels of policy-making, with a stronger dialogical link between these soft law measures

and Community Directives. In addition, this new framework could be strengthened

with a positive duty on all public authorities, including the judiciary, both at the

European and national levels (for example, the European Court of Justice has not yet

taken into consideration gender mainstreaming, see further Shaw, 2001) and with the

strengthening of extant enforcement mechanisms. This policy mix could represent a

leverage for the introduction of reforms in the area of gender equality in CEECs whilst,

at the same time, respecting their national characteristics and regional peculiarities.

Conclusion

CEECs have undergone, and are still undergoing, enormous upheaval in their

economic, political, institutional and socio-cultural structures. The process of re-

Journal of Social Welfare and Family Law 223

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 13: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

nationalisation, which follows the transposition of the acquis communautaire into

national law and the shift towards a mainly neo-liberal economic system, has entailed

high costs of change in the short and medium term. In most CEECs, economic policy

measures and structural reforms have been enacted with the desire to join the

European Union and studies conducted on Eastern enlargement have shown that the

social dimension was not considered a top priority.

In addition, there continues to be some disparity between the transposition of

legislation and the ability to implement and enforce the acquis. Implementing and

enforcing the new legislation adopted pursuant to the EU gender acquis remains the

real test for CEECs. In this context, national administrative and judicial capacity and

frameworks (Emmert, 2004), as well as coordinated actions involving social partners

and NGOs to raise awareness and disseminate information to break gender

stereotyping, are of fundamental importance. It is, therefore, not an easy enterprise

to identify adequate policy solutions for the effective enforcement of gender equality.

The European Union has already been developing the integration process along

the lines of ‘diversity’. The main contention of this paper is that the policy instru-

ments employed in the context of the OMC could, if combined with a gender

mainstreaming strategy, help to promote the introduction of new proactive gender

equality measures in CEECs. In addition, this could provide the conditions for and,

more specifically, a solid political and legal framework for the implementation and

enforcement of gender equality directives in the enlarged European Union.

Notes

[1] There are ten EU equality directives: equal pay (75/117/EEC); equal treatment as regards access

to employment (76/207/EEC as amended by directive 2002/73/EC); equal treatment with

regard to statutory social security schemes (79/7/EEC); equal treatment with regard to

occupational social security schemes (86/378/EEC); equal treatment for the self-employed and

their assisting spouses (86/613/EEC); pregnancy directive (92/85/EEC); working time directive

(93/104/EC as amended by directive 2004/34/EC); parental leave (96/34/EC); burden on proof

in sex discrimination (97/80/EC); part-time work (97/81/EC).

[2] Detailed information about the Community acquis in the social field is available online,

,http://europa.eu.int/comm/employment_social/enlargement/acquis_front_en.htm. and

http://europa.eu.int/comm/employment_social/enlargement/negotiations_13_en.htm.

References

Beveridge, F. & Nott, S. (2002) ‘Mainstreaming: A Case for Optimism and Cynicism’, FeministLegal Studies, vol. 10, pp. 299–311.

Choluj, B. & Neusuess, C. (2004) ‘EU Enlargement in 2004 – East–West Priorities and Perspectivesfrom Women Inside and Outside the EU’, UNIFEN Discussion Paper.

SAMANTHA VELLUTI

School of Law,

University of Liverpool

224 European Section

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014

Page 14: Implementing Gender Equality and Mainstreaming in an Enlarged European Union – Some Thoughts on Prospects and Challenges for Central Eastern Europe

Council Directive 2004/113/EC of 13 December 2004. Implementing the principle of equal treatmentbetween women and men in the access to and supply of goods and services (OJ 21.12.04, L373/37).

Emmert, F. (2004) ‘Administrative and Court Reform in Central and Eastern Europe’, EuropeanLaw Journal, vol. 9, pp. 288–315.

European Commission (1996) Annual Report form the Commission Equal Opportunities for Womenand Men in the European Union 1996, COM (96) 650.

European Commission Communication (2002a) Towards A Community Framework Strategy onGender Equality (2001–2005), COM (2000) 335 final.

European Commission (2002b) Communication from the Commission on Streamlining the AnnualEconomic and Employment Policy Co-ordination Cycles, COM (2002) 487 final.

European Commission, Proposal for a Directive of the European Parliament and of the Council on theimplementation of the principle of equal opportunities and equal treatment of men and womenin matters of employment and occupation, COM (2004) 279 final.

European Commission (2005) Proposal for a Regulation of the European Parliament and of theCouncil establishing a European Institute for Gender Equality (Text with EEA relevance), COM(2005) 81 final.

Jalusic, V. & Antic, M. (2004) ‘Prospects for Gender Equality Policies in Central and EasternEurope’, SOCO Project Paper, no. 79.

McCrudden, C. (1999) ‘Mainstreaming Equality in the Governance of Northern Ireland’, FordhamInternational Law Journal, vol. 22, pp. 1696–1775.

More, G. (1999) ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’,in: P. Craig & G. De Burca (eds) The Evolution of EU Law, Oxford University Press, Oxford,pp. 517–553.

Pascall, G. & Kwak, A. (2004) ‘Gender Equality in the Wider Europe’, Paper presented at the UACESAnnual Conference, Birmingham, 2004.

Rees, T. (1999) Mainstreaming Equality in the European Union, Routledge, London.Rubery, J. (2002) ‘Gender Mainstreaming and Gender Quality in the EU: the Impact of the EU

Employment Strategy’, Industrial Relations Journal, vol. 33, no. 5, pp. 500–522.Rubery, J. (2003) ‘Gender Mainstreaming and the Open Method of Coordination: is the Open

Method of Coordination Too Open to for gender equality?’ Paper presented for the ESRCSemianr on Gender Mainstreaming, Leeds, October 2003.

Rubery, J. et al. (2004) ‘The ups and downs of European gender equality policy’, Industrial RelationsJournal, vol. 35, no. 6, pp. 603–628.

Sadurski, W. (2002) ‘Constitutional Courts in the Process of Articulating Constitutional Rights inthe Post-Communist States of Central and Eastern Europe, Part I: Social and EconomicRights’, EUI Working Paper LAW No. 2002/14.

Sadurski, W. (2003) ‘Constitutional Courts in the Process of Articulating Constitutional Rights inthe Post-Communist States of Central and Eastern Europe, Part III: Equality and MinorityRights’, EUI Working Paper LAW No. 2003/6.

Shaw, J. (2001) ‘Gender and the Court of Justice’, in: G. De Burca & J. Weiler (eds) The EuropeanCourt of Justice, Oxford University Press, pp. 87–142.

Shaw, J. (2004) ‘Mainstreaming Equality in European Union Law and Policy-Making’, EuropeanNetwork Against Racism, April 2004.

Sloat, A. (2004) ‘Legislating for Equality: The Implementation of the EU Equality Acquis in Centraland Eastern Europe’, Jean Monnet WP 08/04.

Szczerbiak, A. (2002) ‘The Political Context of EU Accession in Poland’, Briefing Paper, The RoyalInstitute of International Affairs, European Programme.

Szocialis Szakmai Szovetseg (2003) Gyorsjelentes a szegenyedesrol (Alliance of Social Professionals: ARapid Report on Impoverishment), Budapest.

Szyszczak, E. (1990) ‘L’Espace Social Europeenne: Reality, Dreams or Nightmares?’, GermanYearbook of International Law, p. 296.

Velluti, S. (2003) ‘Towards the Constitutionalisation of New Forms of Governance: A RevisedInstitutional Framework for the European Employment Strategy’, Yearbook of European Law,vol. 22, pp. 353–405.

Velluti, S. (2004) ‘The European Employment Strategy and the Challenges of Enlargement’, in:T. Tridimas (ed.) EU Law for the 21st Century: Rethinking the New Legal Order, HartPublishing, Oxford, pp. 415–436.

Journal of Social Welfare and Family Law 225

Dow

nloa

ded

by [

Mou

nt A

lliso

n U

nive

rsity

0L

ibra

ries

] at

02:

26 0

5 O

ctob

er 2

014